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Post-McBurney round-up

SCOTUS Blog: Virginia went to the Supreme Court with one argument, and only one, for its policy of limiting access to state public records to people who live in Virginia. That did not seem to work well at the argument in February, but that is not the test that counts. The Court decided the case Monday, and Virginia won unanimously – primarily on its chosen argument.

Virginia Lawyers Weekly: The high court said FOIA laws are meant to make public officials accountable to citizens, and Virginia can draw a valid distinction between citizens and noncitizens because it’s the citizens of the commonwealth who foot the bill for the fixed costs underlying agency recordkeeping. Alito’s opinion cited several other state FOIA statutes that discriminate against noncitizens, and the Supreme Court’s validation of a financial reason for the distinction may encourage other budget-strapped states to change their laws.

Times-Dispatch: Open government advocates called Monday’s decision in McBurney v. Young “a stunning blow,” while the Virginia Attorney General’s Office called it “a win for Virginia’s taxpayers.”

Investigative Reporters and Editors: Megan Rhyne, Executive Director at Virginia Coalition for Open Government, said she was disappointed by the many references made in the opinion that seemed to give the public’s right to know short shrift. “I don’t think it actually has a very good grasp on how people use public records day in and day out to make their decisions and take part in the democratic process,” Rhyne said.

USA Today: During oral arguments in February, several justices had questioned whether the state's law served any purpose, since non-residents can hire residents to get information. In his ruling, Justice Samuel Alito noted much of the data is available on the Internet. Still, Alito said, the state law "did not abridge any constitutionally protected privilege or immunity" because access to public records is not a "fundamental" privilege, such as employment.

Reporters Committee for Freedom of the Press: “We cannot agree that the Privileges and Immunities Clause covers this broad right,” Justice Samuel Alito wrote for the Court. “This Court has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws.” Although the Supreme Court’s decision was limited to affirming Virginia’s citizens-only restriction in its public records law, the impact of the ruling extends to a handful of other states across the country that similarly restrict public records access to in-state residents, including Alabama, Arkansas, New Hampshire, New Jersey and Tennessee.

Washington Post: Virginia does not have to allow people outside its borders to take advantage of the commonwealth’s Freedom of Information Act, the Supreme Court ruled Monday. Virginia’s law “provides a service that is related to state citizenship,” Justice Samuel A. Alito Jr. wrote for a unanimous court, and keeping others from using it does not violate the constitutional rights of those outside the state’s borders. As a practical matter, Alito added, most information is available through other means.

Barton Hinkle, Times-Dispatch: “The purpose of the Privileges and Immunities Clause was to place the citizens of each state on equal footing with the citizens of every other state, and create ‘one people’ with regard to ‘the advantages resulting from citizenship in those States.’ Today’s decision allows states like Virginia to treat Americans not as one people, but many.” -Institute for Justice attorney William Maurer, on the Supreme Court's ruling about Virginia's FOIA law

Tony Mauro, National Law Journal: Critics of the law said balkanized information rules like Virginia's would hamper the growing information industry which depends, in part, on national access to state real estate, tax, and other records. But Justice Samuel Alito Jr., writing for the court, said alternate means of getting the information are available, so "Virginia neither prohibits access to an interstate market nor imposes burdensome regulations on that market." States, he added, are entitled to give their own citizens preferential access to documents their tax dollars helped create. Alito gave short shrift to freedom of information laws in general, noting that "There is no contention that the nation's unity foundered in their absence, or that it is suffering now because of the citizens-only FOIA provisions that several states have enacted." Alito also wrote, "This court has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws."

Times-Dispatch: The Supreme Court’s unanimous ruling upholding Virginia’s authority to rebuff freedom-of-information requests by nonresidents provided a ringing endorsement of an important constitutional principle — but not the policy itself. Yet policies that pass constitutional muster still can be bad policies: Taxes and speed limits are constitutional, but a 90 percent tax rate or 10 mph limit on interstate highways would constitute terrible policy choices.

Daily Progress: States’ righters ought to be pleased. Advocates of freedom, not so much. The U.S. Supreme Court this week upheld a Virginia law and appeals court ruling that the commonwealth’s Freedom of Information Act may apply only to state residents and some media outlets. The justices didn’t simply vindicate the law — they did so unanimously. . . . It might be legally allowance for Virginia to withhold information from out-of-staters, but that doesn’t necessarily mean that such allowance is good for government or individuals. For that matter, it isn’t good for the concept of freedom of information.